Lawyer’s Fibbing to Jury Justified New Trial on Damages

Wednesday, June 17, 2026

Page 3

Court of Appeal:

Lawyer’s Fibbing to Jury Justified New Trial on Damages

By a MetNews Staff Writer

The Court of Appeal for this district has affirmed an order granting a new trial on damages to the plaintiff in a personal injury case, agreeing with a Los Angeles Superior Court judge that there were multiple instances of misconduct on the part of the defendant’s lawyer including a false statement to jurors that a medical doctor who was about to testify as an expert witness had been sued by 136 patients for fraudulent billings.

Justice Victor Viramontes of Div. Eight authored the unpublished opinion, filed Monday.

Although Judge Michael Kelley, who presided over the trial of Monica Hardin’s action against Jason Luke stemming from a traffic accident, concluded that attorney John Flock had committed misconduct in his opening statement, he found that a curative instruction would obviate any potential harm. However, following Kelley’s reassignment to a different courtroom, the case was handed to Judge Daniel L. Alexander who, in granting a retrial as to damages, cited Flock’s untrue statement to the jury as one of six transgressions by the lawyer that call into question the adequacy of the award.

He found that Flock’s courtroom mischief “cumulatively infected the proceedings to a degree that rendered a fair trial by the empaneled jury a virtual impossibility.”

$95,000 Award

Had it not been for the misconduct, Alexander determined, the jury might have awarded more than the $95,000 that it did assess as damages—$70,000 for past medical expenses and $25,000 for past noneconomic damages.

What Frock—then with the Sherman Oaks firm of Tharpe & Howell, now with Zelms Erlich Lenkov in Woodland Hills—told the jury was:

“The plaintiff will be calling Dr. Morris. He is a chiropractor to testify at trial. I know Dr. Morris very well also. I encountered him at trial just a couple months ago. Dr. Morris goes to trial probably once a week. At every trial his opinions are almost identical. Dr. Morris is an interesting individual, first of all, not too long ago he was sued for 136 incidents of billing fraud. So 136 patients took issue with him excessively charging or for charging for medical procedures that were not performed. That is the Dr. Morris who is going to show up in court here.”

Kelley’s View

Based on that statement, Hardin moved the next day for a mistrial. Kelley denied the motion.

He determined that Frock was relying, at least in part, on factual recitations in a Jan. 20, 2016, unpublished opinion from Div. Seven of this district’s Court of Appeal in Allstate Ins. Co. v. Shawa in which it was held that Los Angeles Superior Court Judge Maureen Duffy-Lewis erred, in sustaining a demurrer, by denying leave to amend. The judge noted that the opinion shows that the witness, Dr. Andrew Morris, had not been sued by patients; rather, Allstate Insurance Company and two related entities brought an action against two medical groups with which Morris was associated, and against him and two other individuals, alleging unfair business practices.

Kelley also pointed out that the allegations did not relate to recent conduct. The billings in question went back between 11-18 years.

He discerned “a pretty serious misstatement of the facts that was made by experienced trial counsel.”

The judge, mistakenly, expressed an understanding that no personal liability on the part of Morris, only derivative responsibility, had been alleged.

Kelley ruled that it sufficed to tell jurors, as he did:

“You will not hear any evidence of what was described by counsel, which was that Dr. Morris was recently sued by 136 clients for billing fraud. You are not going to hear any evidence about that because there was no factual basis for that statement.”

Morris testified, as an expert on billings, that anticipated future medical expenses would range from $1.38 million to $1.66 million. The jury awarded nothing for future expenses.

Luke’s Argument

In seeking the reversal of the new-trial order, Luke seized on Kelley’s error in saying that personal liability had not been alleged, arguing:

“Contrary to Hardin’s claim and the trial court’s finding Morris had not been personally accused, this Court explained Allstate had sued Morris personally, as well as two other doctors and two medical corporations for billing for services not performed or overbilling for services that were….This Court also explained all the defendants, including Morris, were accused of participating in the fraud….The trial court’s conclusion Morris was not personally accused of and sued for billing fraud was therefore error, and its conclusion Luke’s counsel made a false statement was likewise error. There was consequently no basis for its finding Luke had committed misconduct by making a false statement.”

The brief, signed by Eric B. Kunkel of Tharpe & Howell, LLP, goes on to say:

“Regardless of whether the patients directly accused Morris or Allstate did, Morris was accused of illegal acts as to patients he and the other doctors treated. The statement Morris had been accused of fraud as to 136 patients was therefore accurate, and not misconduct.”

Lack of Deference

Kunkle contended that Alexander, in granting a new trial, failed to accord deference to Kelley’s determination that a curative instruction avoided prejudice to Hardin from Frock’s opening statement, remarking:

“Judge Kelley presided over the trial and denied Hardin’s motion for a mistrial. His assessment is telling…and entitled to great weight.”

The lawyer went on to say:

“There is a reason a motion for a new trial must ordinarily be directed to the same judge who tried the case….In short, he is best qualified to rule on it, precisely because he saw the trial unfold….

“If Judge Kelley did not perceive any alleged ‘misconduct’ to warrant a new trial, another judge would be remiss in ordering one apart from a showing Judge Kelley missed something. There is nothing to show he did. His comments during the trial instead attest he was a very keen observer of all that occurred.”

Hardin’s brief quoted a 2015 Court of Appeal decision as saying that “[t]he law, like boxing, prohibits hitting below the belt.,” commenting:

“Here, Luke’s counsel took cheap shot after cheap shot, resulting in at least six instances of attorney misconduct.”

Hardin maintained that Frock did commit misconduct in denigrating Morris because he was interjecting his personal view as to the witness’s lack of credibility, tried to mislead the jury by implying that 136 former patients had sued the doctor, and attempted “to impeach a witness based on mere allegations.”

Viramontes’s Opinion

Viramontes said that from a review of the 2016 Court of Appeal opinion in Shawa, “it appears Flock made several false or misleading statements,” elaborating:

While Dr. Morris was in fact sued in his personal capacity in the lawsuit underlying that opinion, nothing in that opinion suggests that Dr. Morris’s former patients ever complained about his billing practices. Rather, the opinion states that it was the insurance company who investigated and uncovered the alleged fraudulent billing practices.”

He continued:

“Similarly, Flock’s statement that 136 complaints were made against Dr. Morris was misleading. At least two other doctors and two medical corporations, in addition to Dr. Morris, were named as defendants in that case. Nothing in the opinion states, or even suggests, that all of the allegedly fraudulent bills were issued by Dr. Morris. Rather, the opinion notes that the insurance company’s claims arose out of payment claims submitted by 136 third parties for treatment rendered by the defendants generally, not just Dr. Morris.

“In any event, regardless of whether Flock made false or misleading statements about Dr. Morris, it was improper for him to try to impeach the witness during his opening statement based on unsubstantiated allegations of fraud…. Nothing in that opinion suggests that the allegations of fraud against Dr. Morris were ever proven true. Nor did Flock point to. or otherwise present, any other evidence that establishes Dr. Morris in fact engaged in the fraudulent billing practices that Flock mentioned during his opening statement.”

Additional Misconduct

The justice also wrote that Alexander had sound bases for concluding that there were other instances of prejudicial misconduct on the part of Flock.

Alexander found that Flock improperly accused Hardin of hiding medical reports for certain years when Kelley had ruled they would be inadmissible; tried to introduce evidence of Hardin’s medical conditions unrelated to the automobile collision in defiance of an order in limine; insinuated, falsely, that the plaintiff’s surgeon was a paid expert; and prayed on sympathies of the jury by telling of the financial hardship to Luke’s family if Hardin won.

The lawyer was also faulted for telling the jury that liability did not exist when Kelley had already ruled in Hardin’s favor on that issue. Flock argued:

“This was a fender bender no matter how you cut it. This was not an injury producing event.”

Viramontes said that Alexander properly weighed the relevant factors in concluding that the misconduct was prejudicial.

The case is Hardin v. Luke, B334121.

Adam James Savin of Savin & Bursk Law Offices in Encino joined with Encino lawyers Adam J. Savin, Brian J. Kim and Maureen K. Hennessey of SHK Law and with Benjamin I. Siminou of the San Diego firm of Singleton Schreiber LLP in representing Hardin. Working with Kunkel were Flock, along with Suzanna E. Harman, of Zelms Erlich Lenkov.

Flock did not respond to a request for comment.